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New Jersey Division of Youth and Family Services v. A.M.

May 29, 2009


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Union County, Docket No. FG-20-55-07.

Per curiam.



Submitted: May 6, 2009

Before Judges Cuff, Fisher and C.L. Miniman.

In this appeal, we review an order terminating the parental rights of A.M. to her four children.*fn1 On appeal, A.M. does not dispute that her prolonged abuse of cocaine, heroin and alcohol caused harm to her children and that she was unable to eliminate the harm to them. She contests the findings that the Division of Youth and Family Services (DYFS) adequately considered alternatives to termination of her parental rights and that termination of her rights will not do more harm than good. An integral part of her argument is her contention that the trial judge erred because he did not consider kinship legal guardianship (KLG) and did not consider the wishes of the older children. We affirm.

A.M. is the mother of four children. DYFS has been involved with her family since the birth of her son, P.M., Jr., on April 18, 1993. A.M. tested positive for cocaine during prenatal care and she admitted drug use during her pregnancy.

Nevertheless, P.M., Jr., was discharged to the care of his mother.

A.M. gave birth to her daughter, C.M., on January 24, 1996. Once again, A.M. tested positive for cocaine and opiates. The child was released in the care of A.M. DYFS provided a nurse to help care for the child, but the agency lost contact with A.M. and the children until November 1996 when she was located in a women's shelter in Atlantic County. A.M. acknowledged a drug problem and announced she would seek treatment and enroll in Alcoholics Anonymous and Narcotics Anonymous in December.

DYFS removed the children, P.M., Jr., and C.M., on December 5, 1996. The women's shelter informed DYFS that A.M. left the shelter on December 4 stating that she was going to run some errands and did not return. She left the children unattended. The children were placed with their maternal grandmother and A.M. commenced treatment for her substance abuse on December 6. The maternal grandmother obtained legal custody of the children sometime before May 14, 1997.

Nevertheless, the children were observed with their mother in a motel in Burlington County in late May 1997. The children were returned to the maternal grandmother after A.M. tested positive for cocaine twice in June and July 1997. She also was incarcerated in the county jail in October 1997.

Between June 1997 and July 1998, the children remained with their maternal grandmother. It is unclear where A.M. resided at this time, although she attended dinners at the women's shelter in Atlantic County from time to time. In July 1998, the children were sent to live with their grandfather in Newark while the maternal grandmother recovered from a kidney transplant. When she died in late July 1998, DYFS learned they were living with a maternal uncle in Union County.

There was no further DYFS involvement with the family until April 26, 2000. At that time, the agency received a referral that P.M., Jr., now seven years old, was not enrolled in school, and the maternal uncle was a known drug user, but was enrolled in a rehabilitation program. An investigation substantiated the allegations and further found that the children were dirty and another maternal uncle with an alcohol abuse problem also resided in the home. The home was found "minimally adequate" with regard to cleanliness. Despite promises, P.M., Jr., was not enrolled in school, and a visit to the home in early May 2000 found A.M. alone with the children. She was disheveled and under the influence of drugs.

The children were removed from the home and placed in foster care. A month later, A.M. was incarcerated again for a probation violation. She was found in possession of heroin and drug paraphernalia. A September 14, 2000 psychological examination concluded that A.M.'s prognosis for change was poor without long-term rehabilitation and that she lacked the "behavioral, emotional, and economic stability to be able to provide for the needs of her children and possibly herself, now or in the near term." A.M. was released from jail shortly thereafter.

The child protective litigation proceeded until June 12, 2001, when the judge approved a permanency plan of select home adoption and termination of parental rights due to A.M.'s continued drug abuse, her failure to complete substance abuse programs, and the time the children had been in out-of-home placements. DYFS filed a complaint to terminate A.M's parental rights on August 22, 2001.

Three days later, A.M. gave birth to A.P., her third child. Because DYFS concluded that A.P. was not in imminent danger, she remained in the care of her mother. As the termination of parental rights litigation proceeded, C.M. was placed in a pre-adoptive foster home in October 2001. After several visits, C.M.'s foster parents requested transfer of P.M., Jr., to their home. This was accomplished on April 29, 2002. At this time, ...

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